Impact Of An Indictment

An indictment is the decision of a grand jury to charge a person with a given crime based on evidence presented by the prosecuting agency, or the United States Attorney’s Office. The majority of the jury must make a finding that there was probable cause that the person committed the crime alleged. In essence, the indictment is merely an instrument setting forth allegations and the government still needs to prove its case beyond a reasonable doubt for a criminal conviction.

A defendant has the right to waive an indictment or written accusation. The federal government may approach a potential witness and offer that witness a pre-indictment plea bargain in exchange for cooperation to help bolster their prosecution of co-conspirators or other more culpable co-defendants.

There are risks and benefits to waiving the right to a federal grand jury indictment. The Federal Rules of Criminal Procedure state that if the punishment for an offense is longer than one year or death, and for a crime other than contempt, it must be prosecuted via a grand jury indictment. Pursuant to Federal Rule of Criminal Procedure 7(b), a defendant can waive this indictment if advised of the nature of the charges against him/her in open court. Commonly, a defendant will file a written waiver of the federal grand jury indictment and agree to cooperate through a federal proffer, concurrent with an agreement to testify before a grand jury that charges someone else. This may qualify a defendant to receive substantial assistance credit with the filing of a 5K1.1 motion. The agreement may include lesser included charges. The best possible outcome is for the government not to prosecute the case.

A defendant may not be present with counsel during grand jury proceedings and therefore a waiver may be beneficial in certain cases. Qualified counsel is critical to this assessment at the early stages of pre-indictment investigation.